As a door to one House closes, a potential new NCAA antitrust window opens.
On Friday, 67 former D-I college football and basketball players who opted out of the pending settlement to resolve the House v. NCAA, Carter v. NCAA and Hubbard v. NCAA cases sued college sports’ national government body and power conferences for antitrust claims very similar to those raised in the three suits seeking resolution.
The federal rules of civil procedure permit class members to opt out of a negotiated settlement. The 67 athletes played during the settlement period (2016 to 2024) and are thus class members. By opting out, the players maintain their ability to sue the NCAA and the conferences on antitrust claims that will otherwise be contractually extinguished should U.S. District Judge Claudia Wilken grant final approval to the House settlement this spring.
The legal principles of res judicata and collateral estoppel apply to athletes who remain in the settlement. Those principles instruct that once legal claims and issues have been resolved in court, they’re over and can’t appear in future cases.
Led by former Mississippi State running back Kylin Hill, the 67 opt-out players are capitalizing on their ability to still pursue legal action on the matter. They filed their 141-page complaint in the U.S. District Court for the Northern District of California—the same district in which Wilken presides— just hours before the deadline for objections to the settlement in House. The new case has been assigned to U.S. Magistrate Judge Kandis A. Westmore.
Hill, the lead plaintiff, drew national attention with a tweet he posted in June 2020 calling for Mississippi to remove the Confederate elements from its state flag.
“Either change the flag, or I won’t be representing this state anymore,” wrote Hill, a Mississippi native. His bold stance earned him a feature on the cover of Sports Illustrated, an image included in Friday’s lawsuit.
“By speaking out in 2020, Hill’s influence transcended sports, positioning him for endorsement opportunities and partnerships,” the lawsuit claims. “His appearances on national television and the Sports Illustrated cover should have catapulted him into becoming a top marketable athlete.”
Exiting the negotiated settlement is not without downsides for the 67 opt-outs. The players relinquish any potential financial compensation the multibillion-dollar settlement would have paid them. Another downside is that starting a new antitrust litigation means the wait for a resolution could last many years; antitrust cases against the NCAA have often lasted more than five years, some nearing a decade. Perhaps most importantly, there’s no guarantee of victory or of getting any money. The NCAA is armed with a bevy of defenses that could convince jurors and appellate judges.
The meat of Hill et al. v. NCAA et. al is a familiar dish in contemporary sports law. The players insist that competing businesses, namely colleges and conferences, have unlawfully conspired through NCAA rules to restrain how each is allowed to economically compete for athletes. As stressed here and in previous cases, the defendants haven’t shared broadcasting revenue with the athletes and, until 2021, the NCAA prohibited athletes from signing NIL deals. Meanwhile, the college sports industry has generated billions of dollars in revenue at least in part from the athletes’ labor. The challenged NCAA restraints in Hill are portrayed as price-fixing, illegal refusals to deal and other conduct prohibited by antitrust law.
In a statement to Sportico, an NCAA spokesperson expressed confidence Hill’s complaint will not interfere with settlement plans.
“These follow-on lawsuits represent a very small minority of student athletes who could have participated in the settlement process,” the spokesperson said. “We will explore all options as to these new lawsuits, but they do not present an obstacle to approval of the settlement, which will provide landmark new benefits to student athletes and is consistent with antitrust law.”
Hill is brought by John Arthur Eaves Jr. and other attorneys from the Eaves Law Firm in Mississippi, as well as by Thomas F. DellaFera Jr. of Miller DellaFera in Virginia, a practice primarily known for product liability and terrorism litigation.
By filing before other attorneys try similar lawsuits with other opt-out athletes, Hill’s lawyers might attract other opt-out athletes to join their case. The larger the case, the more the attorneys will ensure they gain an authoritative voice in this new phase of litigation, should other almost identical suits be filed.
Perhaps most importantly, Hill is a reminder to the NCAA and its member institutions that the era of defending against costly and disruptive athlete antitrust lawsuits will not end if Wilken grants final approval of the House settlement. There will be other cases, like Hill, meaning NCAA members will incur more legal expenses.
However, this could also present an opportunity for the NCAA. The organization could use lawsuits such as Hill as leverage in its ongoing push to lobby Congress for an antitrust exemption. That said, this legal fight dates back to 2009 when Ed O’Bannon filed his seminal case over college athletes NIL, and despite changes in presidential administrations and shifts in the political makeup of Congress, no such legislation has gained traction.
